S. 254(2): Plea that the appeal was mistakenly withdrawn on the advice of Counsel and that the same should be restored should be backed by evidence. If the assessee voluntarily withdraws the appeal, he cannot seek restoration on the ground that the withdrawal was an apparent mistake

(i) At the very outset we must point out that it is the petitioner’s case that he acted on the advise of the Counsel in withdrawing the appeal. However, this submission of the petitioner is without there being anything on record from the Advocate concerned that he advised the petitioner to withdraw his appeal. Further the communication dated 23rd April, 2010 addressed to the Tribunal for withdrawal of the appeal was by the petitioner himself and in that communication he does not mention that the appeal is being withdrawn on account of legal advise. In fact it is an unconditional withdrawal of the appeal. Further, there is no explanation also offered for having made a miscellaneous application for recall of the order dated 7th May, 2010 in July, 2013 i.e. after over a period of three years.

(ii) Therefore in these facts, particularly in the absence of any evidence to indicate that the petitioner acted on the advise of Advocate to withdraw his appeal it cannot be said there is any error apparent on the record. In the above circumstances, no fault could be found with the order of the Tribunal in rejecting the application by the impugned Order under Section 254(2) of the Act.

Binaguri Tea Company Pvt. Ltd. vs. Deputy Commissioner of Income Tax [2016]389 ITR 648] and in re : Mahamaya Banerjee [AIR 1989 Cal 106] distinguished